F-1 expiring; Marry first and AOS; or get new F-1 and marry later

[Leo7777 243]

I am US citizen. Have been living for 2 years with a woman who is here on F-1 visa. Her 3 year F-1 visa for Intensive English and 2 year masters degree expires May 2014. She would like to go back to her home country for a month in summer. But then she would have to apply for new F-1 to come back and continue on with PhD program. There is always a chance, no matter how slim, that the new F-1 would not be granted.

We understand that she could just stay here and continue on with PhD program, even on an expired F-1, as long as she has a new I-20 from her university and she continues in good standing. But, then she could not go to home country for a summer visit, as she could not re-enter USA on her expired F-1.

We plan to get married, but cannot do so until March or so of 2014. (A long story; don't ask why the delay).

If we get married in March 2014 or so, then (as I understand it) we apply for AOS to get the 2 year conditional green card. But, she still cannot leave the country until this 2 year GC received, which would probably not be until after summer 2014 has passed.

Now, if she would go back to home coungtry in Summer 2014, apply for and gets new F-1 visa for PhD (should be for 5 years), then there could be a problem with getting married soon after she returns.

As I understand it, if we were to marry now and apply for AOS, there wouldn't be much of a problem with immigration questioning her declaration on F-1 application 3 years ago that she did not intend to permanently immigrate.

But, if she were to apply for and get a new F-1 in summer 2014, and give similar declaration of no intention to permanently immigrate, and then we marry in Fall 2014 and apply for AOS; we could be in deep do-do.

The reason this is becoming a critical issue is: If she cannot/should not go to home country in Summer of 2014, then she must go for 10 days or so during University Christmas break end of this Fall semester, and it is time to be getting air tickets. But she would rather not go for this short 10 day visit, if she really could go for a month in Summer of 2014.

Why do I say cannot/should not go to home country in Summer 2014. 1) If we do marry before - Not being able to leave country while AOS pending. 2) If we do not marry before - Risk of not being able to return on a new F-1.

What are the words of wisdom?

Edited October 16, 2013 by Leo7777

[Teamswirly 3]

I am in the same shoes,My f1 visa expired a long time ago.I wanted to go to Kenya this december for a month for my only bro's wedding.The hustle of returning as an F1 was alot,we had to have a bank statement etc plus i will have to pay a truck load of money a semester on Out of state fees.My boyfriend married me after my school screwed me over and changed my degree to completely online which an international student cannot do.I fell out of status and applied for my AOS since it is not my fault that the school f**ked me over.I applied for my AP so that i can leave the country.I missed a semsester of school but next semsester i may be able to pay like a permament resident,so it is worth.Marry her and save the money.Looks like you have enough time to file and get her travel document :-)

[newacct 688]

If we get married in March 2014 or so, then (as I understand it) we apply for AOS to get the 2 year conditional green card. But, she still cannot leave the country until this 2 year GC received, which would probably not be until after summer 2014 has passed.

This is not true. She can leave once she gets Advance Parole. She will apply for EAD and Advance Parole when she applies for AOS (they are both free when she's an AOS applicant). The Advance Parole should be received within 3 months. So assuming you guys file right after getting married, she should be able to leave the country in June, maybe a little later than she wanted but still plenty of summer left.

[mngoalie 10]

If at all possible, I'd marry ASAP and do AOS. Like you said, there's no question of intent.. If she gets another F1 than marries shortly after arrival, there is that question of intent.

She can always apply for AP (Advance Parole) which would let her leave the country before her GC is approved.

[Leo7777 243]

This is not true. She can leave once she gets Advance Parole. She will apply for EAD and Advance Parole when she applies for AOS (they are both free when she's an AOS applicant). The Advance Parole should be received within 3 months. So assuming you guys file right after getting married, she should be able to leave the country in June, maybe a little later than she wanted but still plenty of summer left.

I have been reviewing the time lines as posted by several people here.

It appears that the Advance Parole and EAD arrives only a few days before the green card.

So in these cases (are they the majority?) the Advance Parole doesn't seem to serve much of a benefit regarding travel.

[newacct 688]

I have been reviewing the time lines as posted by several people here.

It appears that the Advance Parole and EAD arrives only a few days before the green card.

So in these cases (are they the majority?) the Advance Parole doesn't seem to serve much of a benefit regarding travel.

No, sometimes people's green card applications take six months or a year or more. Otherwise why would they let people apply for EAD/AP (since those would be invalid after getting the green card)?

The point is, the Advance Parole is independent of the green card application and is pretty much guaranteed to be received in 3 months. If your green card case goes really smoothly and you get the green card a few days after the AP, or even before the AP, then Great, even better! Then you can travel on the green card. If not, you can use the AP. The point is, either way, if you apply for AP, then the AP processing time of 3 months serves as an upper bound on the time before you can travel -- you will be sure to have some document (AP or green card) on which you can travel, in 3 months.

[Leo7777 243]

Newacct, thanks for your info.

Yes, I understand the value of getting the AP in 3 months in the cases where Green Card doesn't arrive for 6 months or more.

But, as I said, I was seeing a lot of case time lines here where Green Card arrived just a few days after the EAD and AP.

And when you ask: "Otherwise why would they let people apply for EAD/AP (since those would be invalid after getting the green card)?"

Yes, but I was thinking the ideal and perhaps planned scenario was that the EAD/AP would arrive in substantially less time than the typical 3 month for Green Card that I have seen here.

i.e. If the goal by the authorities was to get the Green Card out within 3 months, then the main purpose of EAD/AP would be to get those out within, say, a month.

But since they don't seem to be getting the EAD/AP out until 3 months, and then in many cases, the Green Card comes within a week - - - then there is really a question as to the purpose of even issuing the EAD/AP.

However, I do understand your point that the Green Card may not come for 6 months or more. So from an efficiency standpoint; the real question is the authorities need to determine if the goal is to get EAD/AP out in one month, and then Green Card out in three months - - - or is the goal to get EAD/AP out in 3 months and then Green Card out in a substantially longer time.